Lennard's Carrying Company v Asiatic Petroleum Company

APPEAL from an order of the Court of Appeal affirming a judgment of Bray J.^F1

The appellants were the owners of the steamship Edward Dawson. By a charterparty dated February 23, 1911, the ship was let on time charter to the Anglo-Saxon Petroleum Company for nine, twelve, or fifteen months at the option of the charterers. Under this charterparty she loaded a cargo of 2011 tons of benzine at Novorossisk in Russia for carriage to Rotterdam. The respondents were purchasers of this cargo and indorsees of the bills of lading. On October 1, 1911, whilst in the course of her voyage from Novorossisk to Rotterdam the ship and her cargo were destroyed by fire. The respondents brought an action against the appellants for damages for loss of the cargo.

By their points of claim the respondents alleged the failure to deliver the cargo. Alternatively they alleged that the ship was unseaworthy at Novorossisk by reason of the defective condition of her boilers and that owing to this unseaworthiness the ship with her cargo was driven ashore and lost.

The appellants by their points of defence admitted the failure to deliver, but relied on s. 502 of the Merchant Shipping Act, 1894^F2, as relieving them from liability, and they denied the allegation of unseaworthiness. The respondents by their points of reply denied that the cargo was lost by fire within the meaning of s. 502 and alleged that it was lost by perils of the sea occasioned by the unseaworthiness. Alternatively they alleged that if the cargo was lost by fire the fire was occasioned by the unseaworthiness. In the further alternative they alleged that by the terms of the contract of carriage the appellants had precluded themselves from relying on the protection of the section; but in the circumstances it became unnecessary for the Court to determine this question.

The Edward Dawson was a steel screw oil tank steamer. She had two boilers and each boiler had three furnaces. Her average speed was about seven knots. She was built in 1890 for a French firm and was classed in the first division of the Bureau Veritas. She was supplied with new boilers in 1896. In 1897 she was purchased by the appellants, who then expended 6500l. upon her. The managers of the appellant company were another company, John M. Lennard & Sons, Limited, and the managing director of that company was John M. Lennard, who was the registered managing owner of the ship. Lennard did not give evidence at the trial.

In February, 1911, the ship was repaired at Liverpool to the requirements of the Bureau Veritas surveyor, Mr. Viehoff; and her class was extended for twelve months to March 31, 1912, but subject to the pressure of her boilers being reduced from 160 lbs. to 130 lbs. She then proceeded under the time charter to various ports in the Mediterranean and returned to Thames Haven in June, 1911. There had been trouble with her boilers during this voyage. Before the arrival of the ship at Thames Haven the charterers sent a letter to the appellants complaining that there was something greatly wrong with her engines and boilers and urging that they should be put in thorough working order, and in July, 1911, the appellants ordered new boilers and stipulated that they should be ready by the middle of November. On her arrival at Thames Haven the boilers were examined by a foreman boilermaker named Clarke, representing the general marine superintendent of the ship, Mr. Smaling. Clarke reported that the repairs necessary were of a miscellaneous but not very serious character. No instructions were given by Lennard or the appellants either to Smaling or to Clarke, nor was the charterers' complaint communicated to them. The repairs were done by Fletcher & Sons, Limited, a responsible firm, under the directions of Clarke and were limited to repairing existing leaks. The evidence showed that the normal life of a boiler if well cared for was from sixteen to eighteen years and the normal life of a set of tubes about ten years. The ship then proceeded to New York, and from New York to Barcelona and from Barcelona to Novorossisk, and during all this time the trouble with the boilers continued and increased. The master made no communications on this matter either to the appellants or to Lennard. On her arrival at Novorossisk there was a very large accumulation of salt in the boilers owing to leakage, and the crew spent two days cutting out the salt. After loading her cargo of benzine the ship left Novorossisk for Rotterdam, and before she reached the English Channel the two centre furnaces were completely salted up so that they had become useless, and two tubes in the boilers had burst. Shortly after passing Dover on September 30, 1911, the ship encountered a strong north-westerly gale with a heavy sea. At 3.30 P.M. the captain brought her head to the wind as he...